The lowest form of flattery

Yesterday Peter Lattman wrote about the question of whether litigation documents should be copyrightable, quoting an article by Davida Isaacs forthcoming in the Missouri Law Review on that subject, The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents.  Gordon Smith also discusses the issue.

In academia we (or at least I) worry about a completely different problem: being ignored. 

Case in point: Professor Isaacs does not cite (or at least I couldn't find such a cite) Bruce Kobayashi and my article on the same subject, Class Action Lawyers as Lawmakers, 46 Arizona Law Review 733 (2004). Here's the SSRN abstract:

Private lawyers are significant participants in legislative and judicial lawmaking. However, since law is a public good, lawyers face a significant free-rider problem in investing time and other resources in law-creation other than to the extent necessary to win the case for their client. This Article focuses on the lawmaking incentive problem inherent in class actions, and specifically on class action complaints. Because a class action lawyer prepares a complaint without knowing whether a court ultimately will select her as counsel for the class, the lawyer may have less incentive to put effort into the complaint than if she had been hired prior to drafting the complaint. This Article discusses ways such lawyers can be given adequate incentives to maximize the law-creation value of their complaints. It shows that direct protection, as through intellectual property rights, is not legally available, primarily because of due process concerns for public access to the law. We suggest that protection is best provided by the institutions for choosing the lead plaintiffs and lead counsel in class actions.

I've blogged on related issues, often citing this article. So much for my theory that having a blog would reduce such incidents.

One irony is that the Arizona article was a spinoff of an earlier article, posted as a working paper on SSRN with the intriguing title, Lawyers' Property Rights in State Law, and published as Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004). And, yes, it was published in the Missouri Law Review, same place as Professor Isaacs' article. So much for the institutional memories of law reviews. And I've blogged on that article too.

A nice thing about SSRN, though, is that it permits a sort of "early warning" system that minimizes this problem by distributing works before publication. Then authors like me can bring the problem to the attention of the author of the new work, and the problem can be corrected before publication. And of course I'm not at all suggesting that Professor Isaacs' article shouldn't be published. It may well be an admirable contribution to the literature. But it should acknowledge and build on what came before.

But there are broader issues here about the scope and nature of a "literature search" duty. Last July I posted here on Blogging and the Prior Literature, in which I expressed some irritation about blog posts that ignore prior blog posts on the same subject. I commented, "[i]n the academic setting, this ignorance of the prior literature would be a bad thing, a sign of academic negligence. What about in blogging, particularly by an academic blogger?"

I got a lot of opposition to this point on the ground that such a norm would be bad for blogging, essentially because it would impose an overly burdensome entry barrier to posting. (So, Gordon and Peter are off the hook.)  See especially Will Baude's post.  I don't recall anybody having a problem with such a norm for more formal academic writing.

But query what the norms should be for SSRN postings, given that these postings are becoming almost as important as the final paper. In light of this importance, should authors be able to do their "literature searches" essentially by relying on SSRN as "notice" to the earlier authors?

These issues are becoming increasingly important with the explosive growth in academic publication. This makes complete literature searches ever harder. I know I've sinned in missing earlier papers I should have caught. It may well be that Professor Isaacs did do an extensive search that just failed to turn up my articles referred to above.

Yet the growth in academic literature also makes a literature search norm more important. Powerful search tools and new forms of publication and dissemination of ideas, such as blogs and SSRN, eventually will, I hope, make this problem manageable for conscientious scholars.